September 18, 2009
Superior Court backs ZBA decision
Ruling on proposed slaughterhouse affirmed

GOFFSTOWN - A Hillsborough Superior Court judge has affirmed a decision by the Goffstown Zoning Board to deny considering a man’s application for a special exception to build a slaughterhouse on his Joppa Hill Road property, agreeing with the board that the man needs a variance instead.

The ruling does not stop Negash Abdelkader from building the slaughterhouse if he can obtain a variance.

“It doesn’t stop him from applying for the variance,” Derek Horne, the code enforcement officer in Goffstown, said. “Basically, he submitted an incorrect application.”

The court ruled Abdelkader needed a variance, rather than the special exception he applied for, because he planned to live on the property where the animal processing would take place.

“The petitioner is required to secure a variance to engage in the mixed use of a single-family residence and a processing facility in the agricultural district.,” presiding Justice Larry M. Smukler wrote in an Aug. 15 decision.

If Abdelkader was not going to live on the property, the application for the special exception would have been the right course of action, because animal processing facilities are permissible as a primary use in an agricultural district with a special exception, Smukler wrote.

Abdelkader said he plans to appeal the ruling to the state Supreme Court. His lawyer, Thomas Gleason, did not return a call for comment.

“We’re not going to stop, that’s all I can say,” Adelkader said yesterday. “If we have to go to the U.S. Supreme Court … we will not stop until we get what is really ours.”

Abdelkader submitted plans to build the 1,500-square-foot facility, where he would slaughter goats, lambs, chicken and beef for religious purposes, over a year ago in June 2008. The board sought input from Bedford, as the property is near the town line, and more than 200 residents of Bedford signed a petition opposing the facility.

That August, the Zoning Board learned Abdelkader would also live on the property, and that there had been an error on the application, which said the facility would be only 150 square feet. This led the ZBA to continue the meeting until Sept. 2.

At the September meeting, the ZBA decided not to rule on the special exception, instead saying that Abdelkader should have applied for a variance because living on the property and having his facility there constituted two primary uses.

Abdelkader appealed that decision, bringing the matter to HIllsborough Superior Court, where Smukler agreed with the Zoning Board’s ruling.

In court, Abdelkader and his attorney, Thomas Gleason, argued that he had been given incorrect information by a town employee who told him to apply for the variance, which they said violated the town’s constitutional duty to assist citizens. But the judge found that the town corrected the information in a reasonable amount of time, since it was apparently unclear until Aug. 5 that Abdelkader would be living on the property as well as using it for the animal processing facility.

“This situation is markedly different from one where a town refuses to work with a developer, evidences signs of bad faith, or purposefully engages in dilatory tactics. Here, there was initial confusion that the ZBA attempted to resolve in a timely manner by inviting the petitioner to submit an application for variance,” Smukler wrote.

Abdelkader also argued that he did not need a variance, because the agricultural district allows animal processing facilities as a permitted use. The town, meanwhile, argued that the proposed facility was a commercial use, not an agricultural use, because the animals would be brought to the site, slaughtered and sold – not raised there.

The court disagreed, finding the facility a permissible principal use in an agricultural district, whether in conjunction with a farm or not. The ordinance does allow for some instances of mixed principal uses, Smukler wrote, but it specifically disallows the inclusion of dwelling units in mixed-use projects in the district.

The court also ruled that the slaughterhouse was not an accessory use to the principal use of living on the property. Because there would be two principal uses, the variance is needed, Smukler determined, and not a special exception.

Abdelkader has not yet applied for a variance, Horne said.

“We haven’t received an application, and to my knowledge, he hasn’t worked with anyone at Town Hall to gather that information,” he said.

If Abdelkader does apply for the variance, the process will begin all over again.

“It would require a public hearing, notice to the abutters. I would anticipate that it would also be a notice to Bedford as well,” Horne said. “He would have to go through the public hearing process.”



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